The criteria for determining whether a person constitutes “in a case where a person has performed a wastewater treatment business poorly by intention or gross negligence” as prescribed by Article 64(2)3 of the former Water Quality and Aquatic Ecosystem Conservation Act, and whether a person does not fall under “in a case where a person has installed pipelines not required for a wastewater treatment” under Article 105(1) [Attachment 22] 2(g) of the former Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act, and whether it does not fall under “in a case where a person has performed a wastewater treatment business poorly by intention or gross negligence” (negative)

In light of the legislative purport and language of Article 64(2)3 and Article 71 of the former Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 11979, Jul. 30, 2013; hereinafter “former Water Quality Ecosystem Act”), Article 105(1) [Attachment 22] subparag. 2(g) of the former Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act (amended by Ordinance of the Ministry of Environment No. 543, Jan. 29, 2014) (hereinafter “Enforcement Rule”), delegation to the Ministry of Environment of Article 71(a) of the former Water Quality and Aquatic Ecosystem Conservation Act is merely the criteria for administrative disposition for violations of the above Act or an order under the above Act, and it cannot be deemed that the act of installing the former Water Quality and Aquatic Ecosystem Act does not constitute an act of falsely installing wastewater treatment facilities, which does not constitute an act of violating the provisions of Article 71(2)3 of the former Water Quality and Aquatic Ecosystem Conservation Act by negligence or by negligence. Therefore, it cannot be deemed that the construction of the former Enforcement Rule is not necessary for treatment.

Articles 64(2)3 and 71 of the former Water Quality and Aquatic Ecosystem Conservation Act (Amended by Act No. 11979, Jul. 30, 2013); Article 105(1) [Attachment Table 22] subparagraph 2(g) of the former Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act (Amended by Ordinance of the Ministry of Environment No. 543, Jan. 29, 2014);

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Ulsan Metropolitan City Mayor

Busan High Court Decision 2014Nu441 decided January 16, 2015

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. A. Article 64(2) of the former Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 11979, Jul. 30, 2013; hereinafter “former Water Quality and Aquatic Ecosystem Conservation Act”) provides that “Where a wastewater treatment business operator falls under any of the following subparagraphs, the Minister of Environment may revoke his/her registration or order him/her to suspend his/her business for a fixed period not exceeding six months.” One of the subparagraphs provides that “where the wastewater treatment business operator conducts wastewater treatment in bad faith by intention or gross negligence” (Article 71) of the former Water Quality and Aquatic Ecosystem Conservation Act provides that “the criteria for administrative disposition against violations of this Act or any order issued under this Act shall be prescribed by Ordinance of the Ministry of Environment with respect to the act of violating this Act,” and Article 105(1) [Attachment 2] [Attachment 2] subparagraph 2(g) of the former Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act (amended by Ordinance No. 543, Jan. 29, 2014).

In light of the legislative purport and language of the above provision, delegation to the Ministry of Environment of Article 71(1) of the former Water Quality Ecosystem Act is merely the standard for administrative disposition against violations of the above Act or an order under the above Act, and it cannot be deemed as delegation of the requirement for disposition, even though it means the degree of sanctions against violations of the former Water Quality Conservation Act and the degree of aggravated or mitigated measures. Therefore, the provision of this case must be deemed to only determine the determination of disposition with respect to "in a case where he installs pipelines not necessary for wastewater treatment," which fall under one type of "in a case where he carries out wastewater treatment business due to intention or gross negligence" under Article 64(2)3 of the former Water Quality Ecosystem Act. Thus, the determination of whether an act constitutes "in a case where he carries out wastewater treatment business poorly due to bad faith or gross negligence" should be made based on whether the act does not constitute "in a case where he installs wastewater treatment facilities" as a matter of course by comprehensively taking into account the intent and purpose of the actor, the attitude of the act at issue and the degree of the result therefrom.

Furthermore, in an appeal litigation seeking the revocation of an administrative disposition, the agency may add or change other reasons within the scope deemed identical to the original reason and basic factual relations. However, the fact that the basic factual relations are identical means the same in that the basic social factual relations are identical in view of the specific facts prior to the legal evaluation of the grounds for the disposition. In a case where the disposition agency merely adds or modifies statutes only to the extent that it does not change the specific facts specified at the time of the disposition, or specifically indicate the grounds for the initial disposition, it cannot be deemed that the new disposition is added or modified (see Supreme Court Decision 2006Du4899, Feb. 8, 2007, etc.).

B. According to the reasoning of the lower judgment and the reasoning of the first instance judgment as partially admitted by the lower court, ① the Plaintiff established two-departments of water supply with the Defendant’s permission on April 2, 2008 for the purpose of treating wastewater under the MBR Public Law, but decided not to perform wastewater treatment under the said Public Law, and the Defendant obtained permission for modification with the purport of closing the above process and changing the second course of water supply from the Defendant around April 8, 2010. ② The process of treating wastewater normally by the Plaintiff was that the wastewater that has undergone biological treatment in the width period was discharged to the final outlet through sedimentation and filtering facilities without permission. ③ The Plaintiff installed new wastewater treatment facilities without permission from around August 8, 201 to 201, and installed temporary wastewater treatment facilities without permission from around 100 to 218, the Defendant installed temporary wastewater treatment facilities without permission, and then discharged the existing wastewater without permission, and thereafter discharged the wastewater again from 200 to 114,017.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff’s act constitutes “a case in which wastewater treatment business is performed in bad faith or by gross negligence,” as provided by Article 64(2)3 of the former Water Quality Ecosystem Act, on the ground that the Plaintiff’s act constitutes “a case in which wastewater treatment business is performed in bad faith by intention or gross negligence,” inasmuch as the Plaintiff’s act constitutes “a case in which wastewater treatment business is performed in bad faith.”

In addition, when comparing the original reasons for disposition and the reasons for additional disposition, the phrase “new temporary heading and branching” among the additional reasons for disposition is merely a specific expression of “establishment of pipelines not required for wastewater treatment” among the original reasons for disposition, and cannot be deemed as an addition of a separate or new reasons that are irrelevant to the original reasons for disposition and are irrelevant to the basic facts.

C. Nevertheless, the court below interpreted the meaning of the provision of this case to be limited to "the case where pipes not necessary for wastewater treatment are installed as at the time of installation". Under the premise that the act that does not fall under the provision of this case cannot fall under Article 64 (2) 3 of the former Water Quality Ecosystem Act, the court below determined that the disposition of this case was unlawful since the plaintiff's act did not meet the requirements of the provision of this case and the additional reason for disposition differs from the original reason for disposition and basic facts. Thus, the court below erred by misapprehending the legal principles on the interpretation and application of Article 64 (2) 3 of the former Water Quality Ecosystem Act and the addition and modification of the reason for disposition, which affected the conclusion of the judgment.

2. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)